Filed 8/26/21 Nassir v. Feng CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

FARZIN NASSIR, Individually and 

as Trustee, etc.,

Plaintiff and Respondent,

v.

XIAOGANG FENG et al.,

Defendants and Appellants.

 B305184

 (Los Angeles County

 Super. Ct. No. BC597173)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Richard J. Burdge, Jr., Judge. Affirmed. 

Early Sullivan Wright Gizer & McRae, Eric P. Early, 

Stephen Y. Ma and Sophia S. Lau for Defendants and Appellants.

Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J. 

Campain for Plaintiff and Respondent.

____________________________
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Defendants and appellants Xiaogang Feng and Fan Xu

(collectively, defendants) challenge the trial court’s grant of 

a permanent injunction requiring them to remove a concrete 

deck that extends from the back of their home and encroaches 

on the property of their neighbor, plaintiff and respondent 

Farzin Nassir. Defendants contend that the trial court erred

(1) in failing to find that plaintiff’s claims were barred by laches; 

and (2) in refusing to grant defendants an equitable easement 

to allow them to keep the deck. We disagree and affirm. 

FACTS AND PROCEEDINGS BELOW

Plaintiff and defendants own adjoining properties in 

the Mount Olympus neighborhood in the Hollywood Hills in

Los Angeles. Plaintiff’s “Hercules” property, which he has owned 

since 2000, is located downhill from the defendants’ “Achilles” 

property,

1 which they purchased in April 2014. A concrete deck 

originates in the backyard of the Achilles property and extends 

about 14 feet over the property line and into the back of the 

Hercules property. The deck is approximately 10 feet tall, made 

of solid concrete, and a metal fence surrounds the base of the 

structure.

Plaintiff discovered that the deck encroached on his 

property as a result of a topographic survey performed on or 

around September 6, 2012. Plaintiff initiated the survey as a 

result of separate, unrelated litigation against a previous owner 

of the Achilles property.

Defendants purchased the Achilles property in April 2014

for $5 million. Feng testified that the scenic view from the 

1 The properties are so named because they are located on 

Hercules Drive and Achilles Drive, respectively.
3

encroaching deck was a principal reason for buying the house.

At the time of purchase, the seller provided defendants with

disclosures on a standard questionnaire form. In response to 

a question on whether there were any “[r]eports, . . . studies, 

surveys or other documents pertaining to” (1) “the condition or 

repair of the [p]roperty . . . or” (2) “easements, encroachments 

or boundary disputes,” the seller disclosed that a “lot survey” of 

the property existed, but did not specify that it would show any 

encroachments or disputes. The record does not contain the lot 

survey. Defendants did not obtain a copy of the survey, nor did 

they take any other steps to ascertain the legality of the deck.

On October 8, 2015, plaintiff filed suit, alleging causes 

of action for trespass and declaratory relief, and requested 

preliminary and permanent injunctions. Defendants filed a 

cross-complaint alleging causes of action for quiet title, and 

declaratory relief for prescriptive and equitable easements.

In August 2017, two years into the current case, plaintiff

contacted the Los Angeles Department of Building and Safety

(LADBS) to report the encroaching deck. An LADBS inspector 

found that the deck had been built without permits and issued 

an order requiring plaintiff to obtain the needed permits. When 

plaintiff failed to comply, LADBS issued a fine for noncompliance 

with a new date for correction. According to the inspector, if a 

property owner does not comply at this stage, the department

would ordinarily transfer the case to the city attorney for legal 

action, including potential criminal charges for noncompliance. 

In this case, however, LADBS is awaiting the outcome of the 

litigation before moving forward.

After a bench trial, the court issued a statement of decision 

finding in favor of plaintiff on all of its causes of action and 
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denying defendants an easement. The court entered judgment

on January 29, 2020 granting a permanent injunction requiring 

defendants to remove the deck at their expense.

DISCUSSION

A. Laches

Defendants contend that the trial court erred by failing to 

find that laches barred plaintiff’s claim for injunctive relief. We 

disagree.

An injunction is an equitable remedy to which the doctrine

of laches applies. (See Committee to Save the Beverly Highlands 

Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 

Cal.App.4th 1247, 1266.) Laches bars equitable relief to a 

plaintiff who has waited an unreasonable time to seek relief

when the delay is prejudicial to the defendant. (Columbia 

Engineering Co. v. Joiner (1965) 231 Cal.App.2d 837, 856−857; 

see also Danjaq LLC v. Sony Corp (9th Cir. 2001) 263 F.3d 942, 

951.) In general, “ ‘the existence of laches is a question of fact to

be determined by the trial court in light of all of the applicable

circumstances,’ ” which we review for substantial evidence. 

(Truck Ins. Exch. v. Workers’ Comp. Appeals Bd. (2016) 2

Cal.App.5th 394, 402.) But, where the relevant facts are 

undisputed, we determine whether laches applies as a matter 

of law. (Bakersfield Elementary Teachers Assn. v. Bakersfield 

City School Dist. (2006) 145 Cal.App.4th 1260, 1274.)

The doctrine requires (1) delay in asserting a right or 

claim (2) which was not reasonable or excusable and (3) which 

has prejudiced the defendant. (Magic Kitchen LLC v. Good 

Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157 (Magic 

Kitchen).) “The party asserting laches bears the burden of 
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production and proof on each element of the defense.” (Highland 

Springs Conference & Training Center v. City of Banning (2016)

244 Cal.App.4th 267, 282.)

Delay in asserting a claim is typically measured 

against the relevant statute of limitations for the action. If the 

plaintiff’s claim “is filed within the analogous state limitations 

period . . . the strong presumption is that laches is inapplicable.”

(Magic Kitchen, supra, 153 Cal.App.4th at p. 1157.) This 

presumption may be overcome in exceptional circumstances. 

(See, e.g., Holt v. County of Monterey (1982) 128 Cal.App.3d 797

(Holt).)

The requirements of unreasonability and prejudice are 

“interrelated.” (In re Marriage of Modnick (1983) 33 Cal.3d 

897, 908.) Generally, a delay is unreasonable when it results 

in prejudice (see Brown v. State Personnel Bd. (1985) 166 

Cal.App.3d 1151, 1159), and “ ‘the greater the prejudice, the 

more timely must be the relief sought.’ ” (In re Marriage of

Modnick, supra, 33 Cal.3d at p. 908.) To demonstrate prejudice, 

the claimant can show that she “took actions or suffered 

consequences that [she] would not have, had the plaintiff brought 

suit promptly.” (Danjaq LLC v. Sony Corp., supra, 263 F.3d at 

p. 955.)

In this case, plaintiff learned of the encroaching deck 

around September 2012 and filed suit against defendants three 

years later, on October 8, 2015. Thus, plaintiff filed suit within 

the five-year statute of limitations for an action for the recovery 

of real property2 (see Code Civ. Proc., § 318), and defendants 

2 Defendants do not claim that the statute of limitations 

began running at an earlier date when plaintiff should have
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must overcome a “strong presumption” against the application 

of laches. (Magic Kitchen, supra, 153 Cal.App.4th at p. 1157.) 

Holt, supra, 128 Cal.App.3d 797 provides an example of the 

circumstances required to overcome this presumption. In Holt, 

the real party in interest submitted a proposal in 1975 to develop 

a condominium complex. (Id. at p. 799.) The county board of 

supervisors approved the plan in 1977 and granted the developer 

a use permit in 1979. (Id. at pp. 799–800.) A few months later, 

the plaintiff filed suit, alleging that because the county had failed 

to submit a valid general plan for development of county land, 

the specific plan for the development of the condominium 

complex, which was required to conform to the general plan, was 

invalid. (Id. at p. 800.) The court held that laches barred the 

claim. (See id. at pp. 801–802.) Although the plaintiff had acted 

within the relevant limitations periods for challenging the 

validity of a use permit or a tentative subdivision plan, the court

nevertheless held that he had unreasonably delayed bringing 

suit, to the prejudice of the developer. (Ibid.) The plaintiff knew 

about the developer’s plans as early as 1976, yet he waited two 

and a half years before making his claim, during which time the 

developer spent more than $4 million in justifiable reliance on 

the validity of its plan. (Id. at p. 801.)

Defendants claim that they are similarly positioned to the

developer in Holt. They note that they purchased the property 

during the three-year window between the time plaintiff 

discovered the encroachment and when he finally filed suit. 

If he had acted sooner, they would have known that the deck 

was illegal and would not have purchased the property. Thus, 

become aware of the encroachment, and we therefore do not 

consider this possibility.
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they contend that plaintiff’s delay in filing suit unreasonably 

prejudiced them.

We are not persuaded. Key to the court’s decision in 

Holt is that the plaintiff knew of the potential prejudice to the 

defendant and allowed it to grow greater for two years before 

finally challenging the validity of the permits. (See Holt, supra,

128 Cal.App.3d at p. 801.) In this case, by contrast, there is 

no evidence that plaintiff knew that defendants intended to 

purchase the property. Additionally, in Holt, the developer 

had good reason to believe that its permits were valid and acted 

in justifiable reliance on that belief. Here, defendants simply 

failed to investigate the property boundaries, which had they 

done would have disclosed the encroachment. Under these 

circumstances, the trial court did not err by denying defendants’ 

claim of laches.

B. Equitable Easement

Defendants next claim that the court erred in denying them 

an equitable easement. We disagree.

In cases involving adjacent property owners where a 

party has encroached upon the neighbor’s property, the neighbor 

“is generally entitled to a mandatory injunction requiring the 

defendant to remove the encroachment.” (Nellie Gail Ranch 

Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003.)

In exceptional cases, however, the trial court may deny an 

injunction and instead grant an equitable easement in favor 

of the encroacher. Christensen v. Tucker (1952) 114 Cal.App.2d 

554, the classic authority on this issue, sets out the three 

requirements that an encroacher must establish to obtain

an equitable easement. First, she must be innocent, i.e., 

the encroachment must not be the result of a willful act or 
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negligence. Second, the granting of the easement must not 

cause irreparable injury to the other party. Third, the hardship 

to the encroacher from granting the injunction must be greatly 

disproportionate to the harm an easement would impose on the 

other party. (Id. at p. 562; see also Hirshfield v. Schwartz (2001) 

91 Cal.App.4th 749, 769.)

We defer to the trial court’s factual findings so long as 

they are supported by substantial evidence. (See Hirshfield v. 

Schwartz, supra, 91 Cal.App.4th at p. 772.) We review the trial 

court’s application of the equitable easement doctrine for abuse 

of discretion. (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19.) 

Under this standard, we will not disturb the court’s decision “as 

long as there exists ‘a reasonable . . . justification, under the law, 

for the action taken.’ ” (Gonzales v. Nork (1978) 20 Cal.3d 500, 

507.)

Here, the defendants failed to meet the third requirement 

of demonstrating a disproportionate hardship from the 

enforcement of an injunction. Because this factor alone is 

sufficient to justify the trial court’s decision, we need not consider 

whether defendants were innocent,3 or whether the grant of an 

easement would cause an irreparable injury to plaintiff.

3 Although we need not decide the innocence issue, we note 

that before purchasing the property, the seller gave defendants a 

standard disclosure form where, in response to a question about 

whether there were any “[r]eports, . . . studies, surveys or other 

documents pertaining to” (1) “the condition or repair of the 

[p]roperty . . . or” (2) “easements, encroachments or boundary 

disputes,” the seller answered “yes,” and noted that a “lot survey” 

of the property existed. Yet defendants failed to obtain a copy of 

the survey or investigate further.
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At trial, defendants identified two hardships that they 

would suffer if the court granted plaintiff’s injunction: They 

would have to pay to remove the deck, and they would lose 

the scenic view from the deck, thus diminishing the value of 

their property. Defendants’ expert on valuation testified that 

the loss of the deck would reduce the value of the property by 

approximately $190,000.

4 As to the cost of removal, the trial 

court found that defendants had failed to produce any competent 

evidence. Defendants do not dispute this finding.

The trial court identified three hardships to plaintiff if 

defendants obtained an equitable easement. First, plaintiff

would permanently lose access to the 338 square feet of his land

on which the deck sits. Plaintiff’s expert estimated the value 

of this land at $150 per square foot, or $50,700 in aggregate. 

Defendants do not dispute the accuracy of this estimate. Also,

plaintiff has suffered loss of privacy by virtue of the encroaching

deck, from which certain parts of plaintiff’s home are visible.

The per square foot estimate, however, undervalues the 

hardship to plaintiff, as it does not take into account the impact 

of the deck on plaintiff’s privacy, the aesthetics or the loss of 

value of plaintiff’s property. 

The remaining hardship to plaintiff is more difficult to 

quantify but no less real. According to LADBS, plaintiff could 

face criminal liability if the deck is not removed. Defendants 

contend that the possibility of criminal prosecution is not a 

real hardship because plaintiff could not be criminally liable for 

a deck he did not build or maintain. We disagree. Regardless 

of whether plaintiff would ultimately be vindicated, the mere 

4 This is 3.8 percent of the $5,000,000 defendants paid for 

the property.
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possibility of criminal prosecution is a hardship to plaintiff.

5

For an equitable easement to be appropriate, the defendants 

must show that they “will suffer a greatly disproportionate

hardship from denial of the easement than the presumptively 

heavy hardship the owner will suffer from its grant.” (Shoen v. 

Zacarias, supra, 237 Cal.App.4th at p. 20.)

The trial court’s conclusion that the balance of hardships 

favored plaintiff was reasonable; thus, the court did not abuse 

its discretion by granting the injunction. Although the hardships

to defendants in removing the deck are meaningful, they do not 

outweigh the detriment to plaintiff from allowing the deck to 

remain in place.

5 Defendants claim that the doctrine of unclean hands 

should preclude plaintiff from claiming hardships related to the

possible LADBS prosecution because plaintiff brought about the 

threat of prosecution by reporting the potential violation to the 

LADBS. Unclean hands is an equitable doctrine that prevents 

a party from asserting a right if he engaged in inequitable or 

bad faith conduct in acquiring the right. (See Camp v. Jeffer, 

Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638.) 

Defendants claim that by reporting to LADBS the encroaching 

deck, plaintiff “self-inflicted” this hardship. We are not 

persuaded. As the trial court noted, “[a]sking for [LADBS] 

to determine whether a structure on one[’]s o[w]n property 

[complies with legal requirements] is not wrongful; it is lawful 

and should be encouraged. . . . The damage to [p]laintiff was 

caused by the illegal structure, regardless who reported it.”
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DISPOSITION

The trial court’s judgment is affirmed. Nassir is awarded 

his costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.